When Can a Defendant's Behavior Be Considered Circumstantial Evidence ?

A defendant's behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is "susceptible of no prima facie explanation except consciousness of guilt." State v. Esperti, 220 So. 2d 416, 418 (Fla. 2d DCA), cert. dismissed, 225 So. 2d 910 (Fla.1969). In Esperti, the appellate court approved the admission of evidence that the defendant, after being told that he had no choice but to submit to a gunpowder test, resisted the test by sitting on his hands, wiping his hands with a handkerchief, and trying to rub tobacco ashes on his hands after learning that the ingredient in gunpowder can be confused with cigarette ashes. The Esperti court found that the case before it was not one where circumstances other than consciousness of guilt could have explained the defendant's refusal. As the Esperti court significantly noted, the defendant there had been told that he had no right to refuse the test; however, according to the court, had the defendant been told he could refuse, it would be "unfair" to admit evidence of his refusal. Id. at 419. The unfairness, of course, is that a defendant who is told he may refuse and is told of no consequences which would attach to his refusal may quite plausibly refuse so as to disengage himself from further interaction with the police or simply decide not to volunteer to do anything he is not compelled to do. In contrast, if a defendant knows that his refusal carries with it adverse consequences, the hypothesis that the refusal was an innocent act is far less plausible. Thus, in South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983), the Court, holding admissible the defendant's refusal to take a blood alcohol test, pointed out that, although the defendant was not told that the refusal could be used against him in court, he was told that he could lose his driver's license if he refused. This latter warning made it "clear that refusing the test was not a 'safe harbor,' free of adverse consequences." Id. at 566, 103 S. Ct. at 924, 74 L. Ed. 2d at 760. While the court in Neville held the refusal admissible because the defendant had good reason not to refuse, it noted, in comparison, that in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), the Court had prohibited the impeachment use of the defendant's post-Miranda-warning silence because his "silence during police interrogation lacked significant probative value and . . . any reference to his silence under such circumstances carried with it an intolerably prejudicial impact." Id. at 180, 95 S. Ct. at 2138, 45 L. Ed. 2d at 107. See also Grunewald v. United States, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957) (holding that a person's silence during interrogation is not inconsistent with his exculpatory testimony at trial in light of repeated assertions of innocence during interrogation, the secretive nature of the interrogation, and the focus on the defendant during the interrogation). Thus, while Neville stands for the proposition that evidence of the defendant's behavior (refusal to take the blood test) is admissible where the defendant had substantial motivation not to behave as he did, Hale stands for the corollary proposition that evidence of a defendant's behavior (remaining silent) is inadmissible, because not probative, where the defendant had no substantial motivation not to behave as he did. 501 So. 2d at 20-21.